[Sticky] Civil litigation basics
It is of vital importance to those involved in civil litigation to understand what they need to do. It is too easy to lose sight of the wood for the trees!
In any litigation you need to know a few key things, principally the applicable law and therefore what you have to prove to win/what the other side can prove to stop you winning. In legal academic circles this is described as your case theory: a brief statement of what your case is and why you should win. Put it another way. You need to know and be able to show:
(a) what the parties’ legal obligations are to each other (be it in respect of a contract, under common law or a statute etc) [what should have happened]
(b) what actually happened [the facts]
(c) how those facts compare to what should have happened.
(d) if (c) is a breach of obligation, what that means.
What were the results of the breach of obligation? How are those consequences to be compensated for or remedied? A good lawyer typically goes through a checklist of: Duty; Breach; Causation; and Damage - the fancy words for the process I have just described.
A good litigation lawyer will develop his case theory using the above steps. Everything is tested against that. Once he has a clear idea of these things, he or she can look at every document, witness statement etc critically and put them into one of 3 categories (with reasons):
1. good (for your case)
There is a constant appraisal whether information or developments help the case or present a problem. If a problem, the case theory needs to be reassessed. Not every litigation lawyer thinks with this clarity. Believe me, it helps!
This process should be applied to cases from the time the client first asks you to consider it, as you go about the process of obtaining information and researching the law. It feeds into the advice given to the client and the formulation of strategy and objectives.
In settlement discussions and mediation it is essential to have a clear understanding of the strengths and weaknesses of the case. I use my mediation statement to address these points, and have in some cases found it useful to have prepared a briefing note for the mediator on a particular issue or aspect of the case.
Oh yes, one more thing. It’s all very well to be clear why you should win, but keep asking yourself why you will lose. In every case there are reasons why you may lose. If you can identify those areas of weakness you can adjust your strategy to address them.